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 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL   APPEAL  NO(S). 4248  OF  2017 (Arising out of SLP (C) No. 6695 of 2017)

CHHATTISGARH STATE INDUSTRIAL DEVELOPMENT  CORPORATION LTD AND ANR.         ..APPELLANT(S)     

VERSUS M/S AMAR INFRASTRUCTURE  LTD. AND ORS.     ..RESPONDENT(S)

WITH CIVIL   APPEAL  NO(S). 4251   OF  2017

(Arising out of SLP (C) No. 7723 of 2017) O R D E R

1. Leave granted.

2. The appeals have been preferred by Chhattisgarh State Industrial  Development  Corporation  Ltd.  (in  short,  'the CSIDC')  and  M/s.  Raipur  Construction  Pvt.  Ltd.  being aggrieved by the judgment and order dated 14.02.2007 passed by the High Court of Chhattisgarh in Writ Petition (C) No.1053 of 2016 thereby allowing the same and quashing the

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contract given to M/s. Raipur Construction Pvt. Ltd. by the CSIDC  with  respect  to  the  work  of  “upgradation  of infrastructure i.e. roads, drainage system and water supply in  Sirgitti  under  Modified  Industrial  Infrastructure Up-gradation Scheme (MIIUS) at Sirgitti, Bilaspur.”   

3. Tender was floated by the CSIDC on 3.11.2015 for the aforesaid  work  within  the  stipulated  time  period  of  18 months and tenders were invited online, to be submitted by 12.01.2016.

4.  A writ petition bearing WP(C) No.227 of 2016, was filed challenging the notice inviting tenders issued by the CSIDC and the same was dismissed vide order dated 2.2.2016 by the High Court of Chhattisgarh, Bilaspur.  The online bids were submitted.  The CSIDC opened the tenders for determining  whether  the  bidders  satisfied  the pre-qualification  criteria.  Based  upon  the  information supplied  by  the  bidders,  the  CSIDC  prepared  charts  of technical evaluation documents in the form of Annexures 'A' 'B' 'C' and 'D' which were signed by the Chief Executive Engineer and placed before the Tender Evaluation Committee

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in  its  meeting  held  on  03.03.2016.   The  CSIDC  filed  a Technical Evaluation Sheet as Annexures R-4/3 and 5/3 which was  placed  before  the  Technical  Evaluation  Committee whereas the petitioner in the High Court  i.e. M/s. Amar Infrastructure Ltd. filed the document “Annexure P-4” as technical evaluation document.   

5. It is pertinent to mention here that the documents of technical  evaluation  filed  by  CSIDC  were  signed  by  the Executive  Engineer  and  the  document  filed  by  M/s.  Amar Infrastructure  Pvt.  Ltd.  as  Annexure  P-4  does  not  bear signatures of any official.

6. On 3.3.2016, Tender Evaluation Committee considered the matter and had drawn the minutes which is signed by Mr. S. Rajgire, Executive Engineer Division-IV, Mr. G.V.S.P. Rao, Deputy  Manager  (Accounts)  and  Mr.  Abdul  Shakil,  Chief Engineer. Two bidders namely; M/s. Arcons Infrastructure Pvt.  Ltd., Chhindwara  and M/s.  Raipur Construction  Pvt. Ltd.  were  found  qualified.  It  has  been  opined  by  the Evaluation Committee that they fulfill all the requisite qualifications.  Hence, it was resolved unanimously to open

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the  financial  bids  of  the  aforesaid  two  bidders.   The financial bids were ultimately opened on 5.3.2016.  The bid submitted by M/s. Raipur Construction Pvt. Ltd. was ranked as L-1 as compared to that of M/s. Arcons Infrastructure Pvt.  Ltd.  Chhindwara  whose  bid  was  ranked  as  L-2. Ultimately the bid L-1 of M/s. Raipur Construction Pvt. Ltd. had been accepted on 8.7.2016 and work order had been issued by the CSIDC to M/s. Raipur Construction Pvt. Ltd.

7. The  petitioner/respondent  herein,  namely,  M/s.  Amar Infrastructure Ltd. was disqualified on the ground that its construction experience was not found as per the requisite criteria indicated in experience certificate, quantity of DLC (M-10) i.e. 3194 cum submitted under the key activities of construction experience of requisite quantity of work done was not in accordance with the nomenclature of PWD SOR.  In the nomenclature of DLC in SOR there was no M-20 type of concrete, as such the amount of DLC as presented in the certificate had been rejected.

8. It is pertinent to mention that Writ Petition No.664 of 2016 was filed before the High Court of Chhatisgarh at

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Bilaspur  by  M/s.  B.B.  Verma,  who  was  also  one  of  the unsuccessful bidders, against the CSIDC and others. In the said writ petition, the CSIDC had filed its reply dated 14.3.2016  and had  submitted the  document dated  3.3.2016 i.e. the chart containing technical evaluation in which the aforesaid  facts  were  mentioned.   The  writ  petition preferred by M/s. B.B. Verma was ultimately dismissed by the High Court of Chhatisgarh vide order dated 15.03.2016.

9. However,  M/s.  Amar  Infrastructure  Ltd.  filed  a representation  on  1.4.2016  not  against  the  successful bidder but against M/s. Arcons Construction Pvt. Ltd. to the effect that it had been found eligible for opening financial bid despite not having a Hot Mix –Plant.  After the writ petition in question was filed on 8.4.2016 in the High Court, reply was filed by the CSIDC on 7.7.2016.

10. The  High  Court,  considering  the  discrepancy  in  the document of technical evaluation which was filed by the M/s. Amar Infrastructure Limited and the one filed by the CSIDC,  had  vide  order  dated  28.07.2016  directed  the Superintendent of Police, Raipur to depute an independent

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and competent officer from the Cyber Crime Cell of the State  Police  to  inspect,  examine  and  analyse  the  data available on the computer of the CSIDC and to determine the following points:

“1. What was the initial bid document e-filed by Respondent No.6. 2. Whether in the tender document submitted by respondent no.6, the list of plant and machinery contained hot mix plant or not? Whether said list was certified by the authorised signatory or not? 3. The concerned Officer will after examining the documents  also  determine  whether  the  document Annexure-P/4 has been prepared on the computer of the CSIDC or not? 4. The officer shall also intimate the date of preparation of the document Annexure R4,5/3 filed by  the  CSIDC  and  clearly  intimate  when  the document  was   initially  prepared  and  if  any changes were made to this document then on what date. Report be submitted to this Court within a period of 6 weeks from today.”

11. Pursuant to the order, the report was filed in the High Court on 9.11.2016. The report submitted by the Cyber Crime Cell is extracted hereunder:

“In  the  compliance  of  above  command,  three hard disks were confiscated and tested from the computers of CSIDC by the Cyber Specialist Police headquarters, Raipur and a document was received by the help of chips.  After testing following results were obtained:

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1. Information related to point no.01 is attached in page 115.

2. Information related to point no.02 is attached on 115 page and on page no. 57 a list  of all documents in e-tender created through respondent no.6  are  present  which  does  not  contain  any mentioning of  hot mix plant and in this list a seal of company and signature is used in the place of authorised signatory. 3. According to the compliance of information on point no.3 and no.4 a hard disk was confiscated from  computer  no.3  which  has  a  description  as follows: (A)of Hitachi Company S/R no. 0138264JPT3MAOCOA, 30 G.B.  (B)of  HC  Company  S/R  No.  0A33535BS19570C7A, 164G.B. (C)of Western Digital Company S/R No.WCAYUA915673, 164 G.B.  Confiscated Hard disk was tested by Cyber Crime Expert. The information of point no. 03 and 04 of the Test report is as follows:

Point No. (3) – Document Annexure P/4 is created on the computer of CSIDC, which is located in the Computers' Hitachi Company hard disk who's S/R No. is OA 39264JPT3MAOCOA, 320 G.B. in the file named Annexure  -Bb,  Last  modified  Date  -06.03.2016. Time :-4.46 P.M. the found file is of 80 K.B. which contain 08 pages.  The information related to annexure: P/4 was found in the page nos.6,7,8.

The information related to point no. (4) is found in  the  file  Annexure  -A  Last  modified  Date  : 14.01.2016 Time 12.33 P.M. which was located in the CSIDC hard disk of Hitachi Company who's serial no.

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is 0A39264JPT3MAOCOA, 320 G.B.  According to which document  Annexure  R-4,  5/3  is  presented  in respected court which is a “Technical Evaluation” chart and in the column of tender form price in the column no.2 of the tender form, the D.D. number deposited by the companies taking place in tender is clearly mentioned as well the name of the banks are clearly mentioned.  But the file obtained from the hard disk “technical evaluation” chart who is named as Annexure R-4, 5/3 contains only the D.D. No and does not contain any bank name, in this way, both files have differences in them.

The  information  related  to  “Technical Evaluation” Chart Annexure “B” is located in the file  named  Annexure  -B,  Last  modified  Date  : 04-07-2016 time-02.08 P.M. which is situated in the Hitachi  Company  Hard  disk  who's  S/R  No.  is 0A39264JPT3MAOCOA, 320 G.B. the sixe of the file is 24 K.B. and contains 02k pages.  The attachment for Supreme Court and file found in Hard disk have no differences.

The  information  related  to  “Technical Evaluation” Chart Annexure “C” is located in the file  named  Annexure  -C,  Last  modified  Date: 04.07.2016 time – 02.09 P.M. which is situated in the  Hitachi  Company  Hard  disk  who's  S/R  no.  is 0A39264JPT3MAOCOA, 320 G.B. the size of the file is 29.7 K.B. andk contains 02 pages.  The attachment for Supreme Court and file found in Hard disk have no differences.

The perusal of Document Test reports (I/pages) and C.D.'s as well as chips concluded by the Cyber Cell Specialist is submitted.

Attachment : As per above points.”

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12. The report was filed on 11.11.2016 and the High Court has found that the document which were placed on record; one filed by the CSIDC and other filed by the appellant were  substantially  different  with  respect  to  the  fact whether  Hot  Mix  Plant  was  owned  by  M/s.  Arcons Infrastructure  Pvt. Ltd.  and also  that modification  had been made in the document on 4.7.2016. Thus, the High Court had opined that L-2 tenderer basically was not qualified to participate and had been made to qualify for opening of its financial  bid  in  order  to  give  the  contract  anyhow  or somehow to M/s. Raipur Construction Pvt. Ltd. It concluded that  M/s. Arcons  Infrastructure Pvt.  Ltd. was  illegally included in the qualified list of bidders by the Technical Evaluation  Committee in  its meeting  dated 3.3.2016,  and thus, the contract granted to M/s. Raipur Construction Pvt. Ltd. has been quashed and at the same time further police investigation  has  been  ordered  so  as  to  fix  the responsibility for the manipulations made in the document filed by the CSIDC and/or by M/s. Amar Infrastructure Ltd.

13. Aggrieved thereby the appeals have been preferred in

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this Court.

14. Mr. Mukul Rohatagi, learned Attorney General alongwith Mr. Apoorv Kurup, Mr. A.C. Boxipatro and Mr. Ashish Kumar Sinha, appearing on behalf of the appellants submitted that there is no manipulation in the Technical Evaluation Bid Sheet and pre-qualification criteria was fulfilled by both the tenderers whose financial bids were opened.  Owning Hot Mix Plant was not a mandatory condition and thus it could not be said that the technical evaluation was illegal in any manner whatsoever. The financial bids of the qualified tenderers were required to be opened and Hot Mix Plant was not  in  the  list  of  plant  and  equipments  which  were necessary  to  be  possessed  to  qualify  at  the pre-qualification stage.

15. It was also submitted by the learned Attorney General that the High Court has unnecessarily doubted the documents of  Technical  Evaluation  Sheet  placed  on  record  by  the CSIDC.   It  had  been  filed  within  seven  days  of  the finalisation of the financial bid in the High Court of Chhattisgarh at Bilaspur in the writ application which was

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preferred  by  M/s.  B.B.  Verma  which  was  dismissed  on 15.3.2016 relying upon the very same documents which have been filed by the CSIDC in the instant writ application also.   The  document  which  has  been  filed  by  M/s.  Amar Infrastructure Pvt. Ltd. is not signed by anybody and even if  taken  to  be  an  assessment  made  with  respect  to  the entire tender documents  by CSIDC, hot mix plant being not a pre-requisite and essential to be possessed for opening of the financial bid, the reasoning employed by the High Court that L-2 was got qualified only in order to ensure that financial bid of L-1 could be opened so that it would not be left as the only tenderer, whose financial bid then could not have been opened being only bidder in the fray and re-tendering would have been necessitated, falls down.  

16. Mr. Garvesh Kabra, learned counsel appearing on behalf of the respondent ingeniously submitted that other tenderer had been disqualified namely; M/s. Anil Buildcon (I) Pvt. Ltd. on the basis of not possessing the requisite ‘concrete paver’ and it is apparent from the  Technical Evaluation Sheet filed by the respondent as P-4 that the L-2 tenderer

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M/s. Arcons Infrastructure Pvt. Ltd. did not possess Hot Mix Plant at the time of submitting the tender which fact was noted in the requisite column of the evaluation sheet (P4).   He  has  also  submitted  that  it  was  necessary  to submit  all  the  documents  alongwith  the  tender  forms including  what  were  mentioned  in  Schedule  D  Section  V. Thus, it was submitted by the learned counsel that there had been manipulation made at the instance of the CSIDC as Technical Evaluation Sheet filed by CSIDC does not tally with  the  technical  evaluation  document  filed  by  the petitioner  before  the  High  Court.   It  appears  that manipulation had been done in the document as observed by the  High  Court  on  4th July,  2016.   The  High  Court  has rightly disqualified L-2, and thus it became necessary to invite  the  fresh  bids  as  per  the  prevailing  norms. Consequently, the order had been passed by the High Court, keeping in view the report of the Cyber Crime Cell.  Hence no case for interference is made out in the appeals.  The order passed by the High Court is on proper consideration.

17. In order to appreciate the rival submissions, it is

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necessary to consider the tender document itself and the requirements for pre-qualification. Whether having Hot Mix Plant was necessary qualification? In the tender document, list is given, the same is extracted as under :  

“(a) Only Schedule A and Section 1 of Schedule D are to be filled & signed by the tenderer (b)  All the certificates as per pre qualification criteria shall be appended with relevant forms of schedule “D”. 1. PART ONE (CSIDC F-I)-(Attached herewith, to be submit along the tender) (a) Press notice & corrigendum (b) Detailed NIT

Part(b) (a) Schedule A (i)  Cost Abstract (ii) Bill of Quantities (b)  Schedule B- NIL (c)  Schedule C-NIL (d)  Schedule D Section 1....Technical tender forms (i)  Letter of Technical Tender (ii) Tenderer's Information Sheet (iii)Annual Turnover (iv) Specific Construction Experiences (v)  Declaration (vi)Check list for Technical tender evaluation Section II. Scope of work Section III. Technical specifications of work Section IV. Special conditions of contract Section V. List of approved makes.”

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(emphasis added by us) 18. The tender inviting notice requires certain documents to  be  mandatorily  submitted  online.  The  list  of  the documents as contained in para 1 of the tender notice is extracted hereinbelow:

“It is mandatory to submit the following online: (A)Details of Earnest money in FD (in favour of M.D.C.S.I.D.C. Raipur) from any nationalised bank. (B)  Valid  registration  of  CT/  VAT  and  VAT clearance certificate/ it return acknowledgment. (C ) Letter of technical tender. (d) Tender's information sheet. (E) Specific Construction Experience. (F) Construction Experience in key activities. (G)  List of key plants & equipment certificate, available with the bidder/lease or rented. (List enclosed). (H) Declaration check list for technical tender evaluation. (I)  All  desired  document  should  be  attested  by Notary. (J) All desired document scan copy submitted to Online should also to be submitted physically by post  in  separate  envelope.   Any  additional documents  which  are  not  submitted  online  but submitted physically will not be accepted.

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(K) PAN No. details. (L)  Copy  of  valid  registration  in CGPWD/Central/State/Semi Govt. Of India or PSU of appropriate clause. (M) Tenderer has to submit audited balance sheets of their financial turn over/accounts along with profit & Loss account for the any three (3) year out of last five (5) years. (N)   The  contractor  shall  submit  list  of  works which are in hand. (O)  Affidavit in Original should be in prescribed format regarding that given all the informations are true must be attached on Rs.100/- Non judicial stamp paper.”

 (emphasis added by us) 19. It is apparent that list of plant and machinery as “available” with the bidder, on lease or rented, was to be enclosed. It is apparent that L-2 did not mention that Hot Mix Plant was available with it.  It has to be considered whether Hot Mix Plant was necessary for opening of the financial bid.  

20. The detailed notice inviting tenders required a tender to be submitted in three envelopes in the following manner:

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“SUBMISSION OF  TENDER DOCUMENTS  

1.  Tender  documents  to  be submitted  in  three  envelopes marked A,B & C on line as per mentioned  key  dates  on  portal of https://csidc.cgeprocurenment.g ov.in Envelope  A     will  contain earnest money Envelope B   technical qualification/ details required  for  qualification  as per NIT and other details Envelope  C   shall  have financial offer. 2. For  technical qualification,  eligibility criteria  an  earnest  money  the document  submitted  on  line shall only be treated as final submission  of  document.  Any physical  submission  of  extra paper/  document  shall  not  be taken  for  consideration  for Technical qualification/ eligibility criteria.

PLACE   AND DATE  OF OPENING  OF TENDER

The tenders shall be opened at the  office  of  Managing Director, CSIDC,  First Floor, Udyog  Bhawan, Ring Road no.  1,   Telibandha,  Raipur 9C.G.)  as   mentioned  in  key dates.  After that  Envelop (C)  of  only  eligible applicants  will  be  opened  on the  same  day  or  any  suitable date of the qualified tenderers

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only.

21. In tabular form the originally scheduled dates were given  for  opening  the  envelopes  which  is  extracted hereinbelow :

Seq. No.

CSIDC Stage Suppl ier Stage

Start Date & Time

Expiry Date  & Time

Envelops

7. Open Envelope -A  (PQ Technical  & Commercial Detail)

01/01/2016 from 10.00 A.M.

02/01/2016 from 17.00 P.M.

Technical Envelope

8. Evaluation and Shortlisting of Envelope-A

01/01/2016 from 10.00 A.M.

02/01/2016 from 17.00 P.M.

Technical Envelope

9. Open Envelope-C (Price Bid)

04/01/2016 from 10.00 A.M.

04/01/2016 from 17.00 P.M.

Price Bid Envelope

10. Fill Negot iated Rates

04/01/2016 from 17.01 A.M.

04/01/2016 from 17.02 P.M.

Price Bid Envelope

11. Evaluation and Shortlisting of Envelope-C

04/01/2016 from 17.03 A.M.

08/01/2016 from 17.04 P.M.

Price Bid Envelope

12. Tender Award 08/01/2016 from 17.05 A.M.

12/01/2016 from 17.06 P.M

Technical Envelope Price Bid Envelope

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22. Tender was to be submitted in three envelopes ‘A’,’B’ & ‘C’. Envelope ‘A’ to contain earnest money. Envelope ‘B’ to contain  technical  qualifications/  details  required  for qualification as per NIT and other details. Envelope ‘C’ to contain financial offer.

23. Pre-qualification  criteria  has  been  dealt  with  in Clause 2 of the detailed NIT. The same is extracted as below:

“2.  Pre-Qualification  criteria:  To  be  eligible under the contract, the intending tenderer should meet the following mandatory criteria:

2.1 Financial Criteria Average  Annual  Turnover:  As  per  C.G.  Govt.  PWD Circular No. F21-7/T/2017 dated 02/03/2015 achieved in “any one financial year”a financial turnover in mentioned clauses of civil engineering construction works) of construction work of at least 60%(Sixty percent)of  the  probable  amount  of  contract  for which  bid  has  been  invited  i.e.  INR  26.64 Crores(Audited  balance  sheet  duly  signed  by  CA should be enclosed). (b)  satisfactory  completed  at  least  one  similar work equal in value of 50% (Fifty per cent)of the portable amount i.e. INR 22.20 Crores of contract as  one  date  of  submission  of  financial  offer (Audited balance sheet duly signed by CA should be enclosed).

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2.2     Technical Criteria

A Intending  tenderer  shall  be registered  contractor  with  any Central/State/Semi  Government  of India or PSU in Class A-Unlimited or registered  contractor  in  single registration system of C.G.P.W.D. in appropriate class

AND B Intending  tenderer  should  have

completed  satisfactorily  following works  during  last  five  years  i.e. after  06.10.2010  in  any Government/Semi Government or public Sector undertaking as below: (a) One similar work costing nor less than INR 35.52 Crore each

OR (b) two similar work costing not less than INR 22.20 Crore each

C Construction  experience in  Key activities  (May  be  complied  by specialist   Subcontractors  Employer shall  require  evidence  of subcontracting  agreement  from  the Bidder. Specialist Sub contractor is a  specialist  enterprise  engaged  for highly  specialised  processes  which cannot  be  provided  by  the  main contractor)

Requirement Submission Requirements

For  the  above  or other  contracts executed  during  the

In form,  Schedule-D(v)  Construction

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period  stipulated  in 2.1  above  a  minimum construction experience  in  the following  key activities Earth work 33400 Cum Granular Sub  Base Grading

20300 cum

Dry  Lean Cement Concrete

5100 cum

Cement Concrete Pavement (M-30  & above grades)

10200 cum

Wet  mix mecadam

2500 cum

Dense graded bituminous amacadam and  by Bituminous concrete

3000 cum

R.C.C. open drain (M-20 grade)

7500 RM

D.I.pipeli ne various dia  of class K-9

4265 RM

Octagonal 75 Nos.

Experience in  key activities

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pole  with LED  light fitting 120 watt

a. For the purpose value of executed works and financial  turnover  shall  be  bought  to  current costing  level  by  enhancing  the  actual  value  of work  at  the  rate  of  10%  per  annum  (compounded annually), calculated from the date of completion to  last  date  of  receipt  of  applications  for tenders. b. Ongoing project/part project experience shall not be considered for evaluation. c. For the benefit of the intending tenderers a check list is enclosed at schedule D (Section 1) for  the  documents  to  be  submitted  alongwith tender. d. If  tenderer  qualifies  on  the  basis  of experience  of  one/more  components  of  scope  of work, in such circumstance, a tenderer shall have to  employ  sub  vendor  who  has  experience  in execution  of  that  component,  for  which  tenderer does not have experience. That sub vendor should have  successfully  completed  work  in  any central/State  Government/PSU  in  respect  of particular component as below: (i) One completed work of 80% of the value of that component; OR (ii)Two completed work of 50% of the value of that component  in  the  central/State  Government Department/ PSU Certificate.

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(a) All  tenderers  should  submit  the  valid registration  certificate.   Comercial  tax certificate,  balance  sheet  with  profit  and  loss statement for at least three years. (b) The  tenderer  shall  also  submit  satisfactory completion certificates in support of each quoted experience alongwith work order. The satisfactory completion  certificate  should  be  signed  by  an officer not below the rank of Executive Engineer concerned in case of Government department or the rank of  General Manager in case of Public Sector as the case may be. (c) all the documents to be submitted shall be duly notarized.”

24. It is apparent from the pre-qualification criteria that for acquiring eligibility the intended tenderer has to meet the  financial  criteria  as  specified  in  Clause  2.1, technical  criteria  as  per  Clause  2.2(A)  and  the construction experience in key activities as provided in Clause 2.2 of doing a contract of requisite nature. Clause 2.2(B) required similar construction work should have been completed  satisfactorily  within  five  years,  costing  not less than INR 32.52 crores or two similar works of INR 22.20 crores each and Clause 2.2(C) provided with respect to  the  construction  experience  in  key  activities

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requirement  for  the  above  or  other  contracts  executed during the period stipulated in clause 2.1 above, a minimum construction experience in the key activities as provided in form Schedule D Section I(v) relating to construction experience.

25. Schedule  D  Section  I(v)  referred  to  in  the pre-qualification criteria is also extracted below:

“D(v):  Construction  Experience  in  key Activities.

Fill up one (1) form per contract.

Contract No..... of....

Name of work

Award Date Award Date Completion

date

Role  in contract

Contractor Sub contractor

Total contract amount Employer's name Address Telephone/ fax no.

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E-mail Description of  the  work executed

Note:  Attach  copies  of  the  work  order  and satisfied  completion  certificates  in  support  of each quoted experience. The completion certificate should be signed by the officer not below the rank of  concerned  Executive  Engineer  in  case  of Government Department or in the rank of General manager in case of Public Sector/private sector as the cases may be.

Signature of tenderer Date_______________”

26. Check list was given in Schedule D Section 1(v) for the documents to be submitted along with tender. The same is extracted hereunder :

Name of the Agency S.N o.

Document Details Enclosed  as annexure      page No. from to

Bar cutting machine upto 40 MM dia

1 No.

Cutting pumps  

3 Nos.

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Pan  Mixer of  not less  than 0.5 cum

2Nos.

Plate vibrators of one ton capacity

2Nos.

Minimum shuttering material to provided by  the contractor (good quality steel plates inc steel propose etc.)

L =200 mt Ht 0.30m L= 200mt Ht 1.00 m

Fixed from or  slip from paver

1 No.

Water Tankers (10-12KL)

1 No.

Tipper/tru cks

6Nos.

Soil compactor 8-10 tones)

1 No.

Concrete saw

1 No.

Generator 1 No.

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(250 KVA)

Vibratory roller (8-10 Tones)

1 No

Motor Grader (Clearing/ Spreading/ GSB/100 Cum/ hour)

1 No

Mechanical paver  for CC  Road fixed form

1 No

Mechanical paver  for BT Road

1 No

Note:  the  above  check  list  only  provides  for  those documents  which  are  mandatory  for  the  tender  pre qualification criteria.  Tenderers are required to append, other documents also with the technical tender as required in the detailed NIT or elsewhere in the Part One (CSIDC F-1)”

      (Emphasis supplied by us) 27. It is pertinent to mention here that in said list of mandatory  plant  etc.  necessary  for  pre-qualification criteria, the Hot Mix Plant is not mentioned.  Thus, it was not a pre-requisite to qualify for opening financial bid.

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28. Apart from that, when we peruse the list of minimum plant, equipments and shuttering provided in clause 51 of the  contract  document,  18  items  have  been  mentioned  in which again the Hot Mix Plant is not mentioned in the list of  “Minimum  plant  equipment  and  Shuttering”.  The  list contained in Clause 51 of tender documents is extracted hereunder:

“Sr. No.

Particulars Quantity (As required)

1. Computerised  and  Fully Automatic Concrete batching plant of minimum 30 Cum/ hr capacity.

1 No.  Minimum

Cement  Silos  for  2  (two) days  capacity  with  direct feeding  and  batching facility. Hoopers for fine and course aggregate. Approved Plasticizer dozing facility. Software  programme compatible  to  make corrections  to  batching/ mix design. Concrete  Pump  of  required capacity.

1 No. Transit  Mixer  of  6  Cum capacity.

4 Nos. MS  concrete  Piping  system 1 Sets per

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for pumping Pump set 2. JCB 2 Nos. 3. Vibrators a Electric with low noise 3 Nos. B Petrol (Stand by) 2 Nos. c Needle Vibrator  - 40 2 Nos. d Needle Vibrator – 65 2 Nos. 4 Bar  Bending  Machine  up  to

40 mm dia. 1 No.

5 Bar  cutting  Machine  up  to 40 mm dia.

1 No. 6 Curing Pumps 3 Nos. 7 Pan mixer of not less than

0.5 Cum 2 Nos.

8 Plane  Vibrators  of  1  ton capacity

2 Nos. 9 Minimum shuttering material

to  be  provided  by  the contractor  (Good  quality steel  plate’s  inc  steel propos etc.)

L=200 mtHt 0.30 m L=200 mtHt 1.00 m

10 Fixed  from  or  slip  from paver

1 No. 11 Water Tankers (10-12 KL) 1 No. 12 Tipper/ Trucks 6 Nos. 13 Soil Compactor (8-10 Tones) 1 No. 14 Concrete Saw 1 No. 15 Generator (250 KVA) 1 No. 16 Vibratory  roller  (8-10

Tones) 1 No.

17 Motor  Grader  (Clearing/ Spreading/  GSB/  (100 Cum/hour)

1 No.

18 Mechanical  paver  for concrete  road  &  Mechanical paver for B.T. road

1 No.

उक्त उलल्लेखखित टट ल्स एए ड प्लल एट्स स्वयए  कल्ले  स्वलममित्व कल हहो  | यमदि मकरलयल्ले  पर खलयल  जलतल  हहै  तहो  भलरततीय  गहैर  न्यलमयक  स्टलम्प  पल्लेपर  पर  मकयल्ले  जलनल्ले  वललल्ले

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मकरलयलनलमिल  अन नुबएध  पत्र  जहो  इसती  कलयर  कल्ले  खलए  जलरती  मकयल  गयल  हहो, उपलब्ध  उक्त  मिशतीननों  कल  स्पष्ट  रूप  सल्ले  उल ल्लेखि  हहो  एवए  खजससल्ले  मकरलयलनलमिल अन नुबएध  मनष्पलमदित  मकयल  गयल  हहो  उस  एजजसती  कल  टट ल्स  एए ड  प्लल एट्स  कल स्वलममित्व  कल  सत्यलपन  कलयर पललन  अमभयएतल  दलरल  जलरती  मकयल  गयल  हहो  | प्रमिलण पत्र  कल्ले  अभलव  मिज  ठल्लेकल्ले दिलर  ककी  अनहतल र मिलनतल्ले  हह ए  मनमवदिल  नहहीं  खिहोलती जलवल्लेगती |

Note: The details referred to herein above are only for  the  purpose  of  quantitive  assessment.   The specification  &  qualitative  aspect  of  the shuttering material shall be in accordance with the BOQ & Technical specification.  The details are to be  provided  within  30  days  after  award  of contract.”

29. In case, any of the aforesaid minimum equipment is not available and certificate is not appended to the bid, the financial bid was not to be opened.

30. The Hot Mix Plant finds place in different Section V of Schedule D.  A bare reading of Schedule D Section V makes it clear that though it was part of tender form and was in the list of approved tools and machinery to be used for road  work,  it  was  not  necessary  for  the  purpose  of technical evaluation at the stage of pre-qualification for opening of financial bid.

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31. Considering the aforesaid various clauses, we are of the considered opinion that both the bidders L-1 and L-2 i.e. M/s. Raipur Construction Pvt. Ltd. and M/s. Arcons Infrastructure  Pvt.  Ltd.  were  technically  qualified  for opening of their financial bids.  The opinion expressed by the High Court that L-2 was made to be qualified in spite of the fact that it was not having Hot Mix Plant, thus, cannot be accepted as available ground to disqualify L-2 tenderer. The relevant clauses of the tender document were not  placed  for  consideration  before  the  High  Court  as mentioned by the High Court and at last moment the Hot Mix Plant inclusion in Schedule D Section V was indicated to it by the disqualified contractor.  In our opinion, Hot Mix Plant was not a mandatory requirement so as to open the financial  bid.   Thus,  the  financial  bids  of  the  two tenderers who succeeded at the pre-qualification stage had been rightly opened and considered. In our opinion, M/s. Raipur  Construction  was  not  favoured  by  qualifying  the disqualified tenderer - M/s. Arcons Infrastructure Pvt Ltd to give the contract to it in surreptitious method and manner  as  observed  by  the  High  Court.   M/s.  Arcons

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Infrastructure was, in fact, rightly qualified.

32. This Court in  Tejas Constructions and Infrastructure Pvt. Ltd. vs. Municipal Council, Sendhwa and Anr. (2012) 6 SCC 464 has laid down that when the work is 60 per cent complete, Court should be slow to interfere as retendering would delay the project. In the absence of malafide or arbitrariness which is not made out in the instant case as 50 per cent of the work had been completed when the order was passed by the High Court, hence, no interference was warranted in the present case.

33. Now, we advert to the question of manipulation in the technical evaluation sheet which has been placed on record by the CSIDC in the form of document R-4/3 and 5/3 and by M/s. Amar Infrastructure Ltd. as Annexure P-4 in the High Court.

34. The  Cyber  Crime  Cell  has  observed  that  some modification was made on 4th July, 2016, in the technical evaluation bid document P-4, a copy of which was filed by the respondent i.e. M/s. Amar Infrastructure Limited in the month of April.  It was also not reported what change was

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made in P-4. There was no such manipulation reported in the document of technical evaluation filed by the CSIDC in the High Court.  We have seen the stand of CSIDC in its reply to the Writ Application preferred by M/s B.B. Verma which was dismissed by the High Court after looking into same technical evaluation report.  The similar stand had been taken by the CSIDC and the very same document of technical evaluation had been placed on record in the aforesaid case as is apparent from the pleadings to which our attention has  been  drawn  by  the  learned  Attorney  General.   The document relied upon by the CSIDC had been placed on record of said case within a week of finalisation of the financial bid. Immediate filing of the same and taking the stand to the similar effect as has been taken in this matter also vouch for the correctness of document which has been filed by the CSIDC and there is no manipulation in it. As per report  of  the  cyber  crime  cell  also  there  is  no manipulation in the document which has been relied upon by the CSIDC. The question of manipulation as to Hot Mix Plant is of no consequence as it was not a mandatory criteria for opening of financial bid. The ownership or otherwise of the

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hot mix plant was not at all necessary and the plant was not  required  as  mandatory  one  for  the  purpose  of pre-qualification stage for opening of financial bid.  It was only in the list of approved plant and equipments to be used under the certification of the Engineer-in-charge.  It appears that the document P-4 which had been filed by M/s. Amar Infrastructure Ltd. contained the evaluation sheet but it was not as per requirement of aforesaid various clauses necessary for pre-qualification stage and non-submission of the information as contended by M/s. Amar Infrastructure Ltd. could not have disqualified M/s. Arcons Infrastructure and Constructions Pvt. Ltd. Thus, what was the necessary requirement as per criteria for opening of the financial evaluation  had been  rightly placed  before the  Technical Evaluation  Committee  on  3.3.2016.  We  have  perused  the original  Minutes  and  the  technical  evaluation  document filed  by  CSIDC  which  were  placed  before  Technical Evaluation  Committee,  and  was  signed  by  the  Executive Engineer  and  had  been  considered  by  the  Technical Evaluation  Committee.  The  minutes  of  the  Technical Evaluation Committee had also been signed by the aforesaid

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three  officers.   Apart  from  that  in  the  minutes  of Technical  Evaluation  Committee  meeting  dated  3.3.2016, details  of  qualifications  have  been  mentioned  and  that accords with the document of evaluation sheet which has been relied upon by the CSIDC. 35. In  our  opinion,  as  the  hot  mix  plant  was  not  a mandatory requirement so as to open the financial bid, we decline to go into the submission raised on behalf of the appellants that M/s. Amar Infrastructure Limited has not disclosed how and when and from whom and by which process it obtained the document P-4 which is not signed by anybody as the fact remains that the document which is filed by the respondent  also  existed  in  the  computer  of  the  CSIDC. However,  it  looms  in  insignificance  owing  to  the conclusions to which we have reached with respect to the Hot  Mix  Plant.  May  be  that  this  document  P-4  was  also prepared by somebody in the CSIDC but it was not initialed or signed by anybody.  It depicted the position of entire tender  of  L-2  but  what  was  mandatory  requirement  for pre-qualification  stage  and  technical  evaluation  was correctly placed before the Technical Evaluation Committee

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in the form of document R-4/3 and R-5/3.  In view of the aforesaid, we are of the opinion that the report of the Cyber  Crime  Cell  is  of  no  consequence  with  respect  to pre-qualification criteria and opening of financial bids, since  it  is  not  disputed  that  successful  tenderer  L-1 fulfilled all conditions and had Hot Mix Plant also.  

36. There was no manipulation in the mandatory requirements and  may  be  that  P-4  was  prepared  but  that  was  of  no consequence as deficiency of Hot Mix Plant, even if placed before  Committee,  would  not  have  tilted  the  balance  in favour of the respondent M/s. Amar Infrastructure Limited. The Committee on that basis could not have disqualified the L-2 tenderer. 37. Coming to the submission raised by the learned counsel for the respondent that M/s. Anil Buildcon (I) Pvt. Ltd. was disqualified for not possessing concrete paver as such L-2  tenderer  M/s.  Arcons  Infrastructure  Pvt.  Ltd.  also ought to have been disqualified for deficiency of Hot Mix Plant, we are unable to accept the submission as concrete paver was mentioned in the list of mandatory plant and

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equipment  for  pre-qualification  stage  so  as  to  open financial  bid.   Thus,  this  submission  is  found  to  be baseless.  M/s Anil Buildcon (I) Pvt. Ltd. was rightly disqualified.

38. We also find that M/s. Amar Infrastructure Ltd. itself was  disqualified  and  it  had  not  questioned  the qualification  of  the  successful  bidder  but  that  of  L-2 bidder - M/s. Arcons Infrastructure Pvt. Ltd. on ground that it was not qualified and its financial bid had been illegally opened.  It was purely a fight between the rival tenderers involving no element of public interest.   It was the respondent who was trying to cater to its business interest to ensure retendering by seeking disqualification of L-2 tenderer M/s. Arcons Infrastructure Pvt. Ltd. to whom contract had not been given.  The Court has to be loath in such matter to make interference.    39. Resultantly, we find that there was no merit in the writ petition filed by the respondent in the High Court. Thus, we have no hesitation in setting aside the impugned judgment, order and directions passed by the High Court.

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The appeals are allowed.  Parties to bear their own costs as incurred.

...............J. (ARUN MISHRA)

...............J.           (AMITAVA ROY)

NEW DELHI MARCH 09, 2017.